Case Comment: AR v RN (Scotland)  UKSC 35
25 Friday Sep 2015
Habitual residence: a question of fact
International relocation is not uncommon for many families today. Business needs, family ties, the demands of continued professional development or career enhancement, are just some of the factors which lead parents to move their children across international boundaries. Relocation may involve a temporary move, resettlement for a fixed term or indeed a move that is intended to be permanent. When relationships break down in such circumstances, the question of where a child has his or her habitual residence is thrown into stark relief.
The Supreme Court, in the case of AR v RN (Scotland)  UKSC 35 has confirmed that habitual residence is a question of fact rather than legal construct. The court decided unanimously to dismiss the appeal of a father against the decision of the Inner House of the Court of Session, which had held that “shared parental intention” was not an essential element in the alteration of a child’s habitual residence (reversing the decision of the Outer House). The Supreme Court re-emphasised the importance of a factual analysis in such cases and that the “stability” of residence was the determining factor in assessing where a child may be habitually resident. The pivotal issue was neither whether that habitual residence could be said to be “permanent”, nor whether both parents had agreed to a shift in habitual residence.
The case concerned the care of two young children born in France in August 2010 and June 2013 respectively, to a British/Canadian mother and French father. The family had lived together in France until July 2013. At that time, the mother and the children moved to Scotland with the father’s consent for an agreed period of 12 months during the mother’s maternity leave. The parents’ relationship foundered in November 2013 when the mother discovered the father’s infidelity. The mother raised residence proceedings in Scotland. The father responded by serving a Hague Convention Petition upon the mother seeking the return of the children to France. The basis of the petition was that the mother’s raising residence proceedings in Scotland, amounted to her “unlawfully retaining” the children in Scotland in breach of the father’s right of custody.
The United Kingdom and France are signatories of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Child Abduction and Custody Act 1985 is the legislative consequence of the UK’s obligations under the Hague Convention. The Hague Convention has the force of law within the United Kingdom by virtue of CACA 1985, s 1(2). The retention of a child in one contracting state will be “wrongful” in terms of Article 3 of the Hague Convention, if that retention is in breach of “rights of custody” enjoyed by the other parent under the law of the contracting state “where the child was habitually resident immediately before the removal or retention”. Accordingly, determining where the children were habitually resident at the point when their mother raised residence proceedings in Scotland in this case was essential to the determination of the dispute.
The decision of the Outer House
In the Outer House of the Court of Session, the Judge at first instance, Lord Uist, rightly identified that the primary question before him was whether at the point when the mother raised residence proceedings in Scotland in November 2013, the children retained their habitual residence in France or whether by that time, the facts and circumstances drove him to the conclusion that habitual residence had shifted to Scotland. The Lord Ordinary had heard submissions that relied upon the guidance given by the Supreme Court in previous cases on the issue of determining habitual residence. However, he found that the children had not acquired a habitual residence in Scotland but retained their habitual residence in France. He concluded that a central consideration was whether there was a “joint intention” on the part of the parents, “to uproot themselves from France and to relocate permanently to Scotland”. Accordingly, he granted the father’s application for the return of the children to France, having given considerable weight in his analysis to the absence of joint parental intent to change habitual residence.
Decision of the Extra Division of the Inner House of the Court of Session
On appeal, the Inner House of the Court of Session determined that the Lord Ordinary had erred in the law by treating “a shared parental intention to move permanently to Scotland as an essential element in any alteration of the child’s habitual residence from France to Scotland”. Accordingly, the Inner House concluded that the Lord Ordinary had been deflected from a proper consideration of the factors to be relied upon by the mother. A proper, balanced analysis of the facts and circumstances of the case was, according to the Inner House, required bearing in mind the guidance given in previous Supreme Court decisions about the determination of habitual residence. The issue that ought to have been considered by the Lord Ordinary was whether or not there was “a need for a longer period in Scotland before it could be held that there had been a change in the habitual residence of the children”. The court concluded that the four month period of their residence in Scotland was sufficient to bring about that change and that the overall facts and circumstances of the case led it to the conclusion that the children had acquired a new habitual residence in Scotland. The appeal was allowed.
Supreme Court judgment
The father appealed to the Supreme Court. The Supreme Court considered the issue of whether or not to order the return of the children to France. The court’s unanimous judgment was issued by Lord Reed. He drew attention to the body of case law from the Supreme Court that provided guidance in determining “habitual residence”. That line of authorities provided the following guidance:
- Habitual residence must be interpreted as a place which reflects some degree of integration by the child in a social and family environment.
- Where cases involve an infant there is a need to focus upon the primary carer rather than the child, given that the infant shares the social family environment of the parent upon whom that child is dependent.
- Habitual residence must be distinguished from temporary residence and will have a certain duration reflecting an adequate degree of permanence.
- There is no minimum duration and the duration of residence serves only as an indicator in the assessment of the permanence of the residence.
- All the circumstances of the case must be considered.
- Ultimately, it is the stability of residence which is important and not whether it has a permanent character.
- There is no rule of law that one parent cannot unilaterally change the habitual residence of a child.
- The “essential factual and individual nature of the enquiry should not be glossed with legal concepts which would produce a different result from that which the factual enquiry would produce”.
The Supreme Court rejected the arguments made on behalf of the father and accepted the determination of the Inner House that the Lord Ordinary had failed to apply previous guidance by the Supreme Court. “Parental intention” was relevant but was concluded not to be the only relevant factor: “The absence of a joint parental intention to live permanently in the country in question is by no means decisive.” Notwithstanding that the initial intention was that the children should reside in Scotland for a fixed period of 12 months, after four months “their life had the necessary quality of stability” for them to have acquired a habitual residence in Scotland. They had become integrated in their environment in Scotland and family life for them existed in that jurisdiction. Accordingly, the appeal was dismissed.
The decision of the Supreme Court in AR v RN is consistent with the line of authorities emanating from the Supreme Court on how courts are to determine the habitual residence of a child. The fact-specific analysis that is to be carried out does present difficulties both for parents and for those advising them. Irrespective of whether or not there has been an agreement to relocate for a temporary or fixed period, a child’s habitual residence may, on the facts and circumstances of the case, shift even where there was no parental intention that habitual residence should alter. The elevation of an analysis of the facts and circumstances over parental autonomy, may take some parents by surprise.